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Environmental Protection in the Age of Economics: the Niue Experience (Article) [1998] JSPL 8; (1998) 2 Journal of South Pacific Law

ENVIRONMENTAL PROTECTION IN THE AGE OF ECONOMICS –

THE NIUE EXPERIENCE

Nena Hicks ^*

Custom law in Niue, as elsewhere in the Pacific, continues on the one hand to defy categorisation and on the other to enjoy considerable community support.^.1 It is this support which environmental lawyers identify as being essential in underpinning the objectives of sustainable development and environmental protection. The identified role of custom within the proposed Huvalu Forest Conservation Area of Niue demonstrates that even small nations with formal western style legal systems and the pervasive influences of overseas aid and remittances continue to recognise custom law. In this paper the Huvalu proposal is discussed and a process for integrating policy and practice is documented.

Once two systems of law are seen to co-exist within a country, that country is said to have a pluralist legal system. Typically, as in Niue, this means a modern written set of laws geared towards nationhood and development and a custom law system which continues to operate, particularly in the private sphere. In the Huvalu area, for example, both the fono and tapu which are forms of customary control are evident. These are used to regulate resource use and to create protected areas respectively. If they are contravened, the penalty is severe sickness². Other custom law, such as that relating to land tenure, became part of the formal system through legislation.

In line with International Law initiatives, and in acknowledgment of the need for community support for policy implementation, the Huvalu project document has as its objective the conservation of existing biodiversity

"through the development of village managed activities founded upon sustainable resource exploitation practices."

This initiative followed the submission in May 1995 of a project preparation document - Huvalu Forest Conservation Area Project - by the Environment Unit of the Community Affairs Department to the South Pacific Biodiversity Conservation Programme (SPBCP).³

In order to engender community support, consultation with the two villages in the proposed conservation area of approximately 5400 hectares⁴ is carried out by the Niue Environment Unit. This area completely encloses the Huvalu forest and was chosen because

"Of all the sites considered, only the Huvalu forest is considered large enough to maintain ecological viability and complex enough to encompass a wide range of interactions prevailing in the country. Conservation of this one site will protect three quarters of Niuea’s remaining high stature rainforest, a forest under potential threat form logging and agricultural activities. A fully representative sample of Niuean biodiversity will be protected including significant populations of birds, bats, coconut crabs and other wildlife"⁵.

The project is supported by the villages of Liku and Hakupu which own the land⁶. It is these customary landowners, comprising 17% of the population of Niue or 383 people, who are identified as the potential beneficiaries of the project.⁷

The project has been divided into three components, namely project management, income generating projects and a resource management plan⁸.

In order to set up a community based management structure, the management component of the project is aimed at developing the planning and management skills at the community level. The Environment Unit will oversee this aspect during the initial stages. A Conservation Area Coordinating Committee comprising representatives from government, non-government organisations, the villages and the Environment Unit is also envisaged. A system for evaluating and, monitoring the management of the project will be incorporated⁹.

The area will not be "closed" in the sense that activities founded upon the sustainable use of natural resources¹⁰ could, it is suggested, be developed or where already undertaken, continued. Examples noted are eco-tourism, forestry and agriculture¹¹. Within the proposed conservation area, agriculture based on a shifting cultivation system is practiced on approximately 800 ha of land¹². Taro and other root crops are grown for a year and the land is then left fallow for seven to ten years. Coconuts¹³, yams and bananas are produced. The forest in the conservation area is also used as a source of building materials, foods, medicines and firewood¹⁴.

Although traditional resource management practices have been successfully used in the past in the conservation area, the extent and nature of resource use has altered with the advent of modern technology and a cash economy geared towards an export market. Although custom law alone, in the form of the fono and tapu, is unlikely to be successful in this new economics driven environment, and whilst modern resource management techniques are considered necessary, the project seeks to:

"marry appropriate traditional and modern resource management techniques and to establish a framework for the sustainable use of natural resources in the conservation area"¹⁵.

A traditional tapu covers approximately 100 hectares within the proposed area¹⁶. The report states that there are at least four tapu areas, two on Hakupu land and two on Liki land, which are currently enforced¹⁷. Veve in Hakupu is tapu for spiritual reasons¹⁸. It is a cave "where the life or core of the island (tokamotu) is hidden"¹⁹. The other enforced sites are sacred bat reserves or tauga peka²⁰. Fagafue is a village sanctioned tapu on Hakupu land and it is the largest tapu area. It has been tapu for four generations²¹ and covers

"...one of the surviving large areas of tropical rainforest, and consists of tall trees forming a dense cover over a fairly sparce herbaceous layer below."²²

On Liku land there are at least four household sanctioned tapu areas of about one hectare each, two of which fall within the proposed conservation area. Although there appears to be some concern that the tapu is being questioned by some young members of the communities23 these are sites of "minimum human activity"²⁴ and as such:

"No new management regimes are envisaged for these areas, other that the traditional sanctions currently being applied"²⁵.

This is a graphic example of the enduring resilience of custom law in Niue. Indeed the last four generations of Niueans have been subject to massive social change and yet have maintained their beliefs and the laws which protect their resources.

The project also provides some interesting background on the nature of the fono and tapu